Tracking Tax Guidance and Court Cases

Friday, July 14, 2017

Oftentimes, taxpayers rely on various authorities in planning transactions and reporting them for tax purposes, as well as defending them during an Internal Revenue Service (IRS) audit, appeals or in litigation. These sources include authorities like the Internal Revenue Code, legislative history and other legislative materials, Treasury regulations and other IRS published guidance (e.g., revenue rulings, revenue procedures, notices, announcements), IRS private guidance (e.g., chief counsel advice, technical advice memoranda, private letter rulings, etc.), and case law. As we have discussed previously, these authorities are afforded different weight by courts and the IRS, and can serve different purposes in your matter.

As most practitioners agree, tax law is not always clear in any given area. Indeed, situations frequently arise where a pending case contains tax issues that are germane to the particular position that a taxpayer either wants to take on a tax return or has already taken but is the subject of a dispute with the IRS. Many times taxpayers may not even be aware of the pending case until a court order or opinion is issued. Other times, taxpayers may be aware of the case and want to track its status. This raises the questions of how does a taxpayer become aware of a pending case that potentially impact its situation and, once it becomes aware, how can it track the status of the case.

Publications such as Tax Notes and BNA track recently released tax opinions, and are a good source of information. However, as noted above, taxpayers sometimes want to know about pending cases, including arguments made by other taxpayers and the government, before an opinion is issued. While Tax Notes and BNA sometimes report on the status of pending cases, whether it relates to a filing of a Tax Court petition or briefs filed by the party, the status of most pending cases is not known to the general public until an opinion or order is issued.

The easiest way to learn more about a tax case (or any federal case) outside the Tax Court is to review the Public Access To Court Electronic Records (PACER) website. This is a subscription service that contains all electronic filings made in most federal courts. PACER contains the entire docket sheet for a particular case, and you can click on links to filed documents and instantly obtain them for a nominal charge.

Obtaining case filings for docketed Tax Court cases is more difficult. The Tax Court does not use PACER, but rather has its own docket system which is available on the court’s website. Under the Tax Court’s system, opinions are published on the Tax Court’s website each day around 3:30 pm Eastern Standard Time, and there is a word-searchable database of opinions whereby T.C. and Memorandum Opinions are available dating back to September 25, 1995 and Summary Opinions are available dating back to January 10, 2001. See here for our prior discussion of the types of Tax Court opinions. Several years ago, the Tax Court also began making available certain Orders that it issues each day. These Orders can be found by reviewing Designated Orders (those Orders that a particular Judge deems worthy of being highlighted) issued each day, and by searching the Orders database. The Orders, however, are available only since June 17, 2011.

Through the Docket Inquiry tab on the Tax Court’s website, you can search for a particular case, and retrieve the docket sheet for the case. Only orders and opinions issued by the court, however, are available via hyperlink. All other court filings are unavailable via hyperlink to the general public, although registered practitioners who have entered an appearance in that particular case have access to all the documents. If you would like to view or get copies of documents not available on the Tax Court’s website, you must request a copy of the documents or view the documents in person on a computer at the Tax Court.

Practice Point: On a daily basis, we monitor tax publications and the Tax Court’s website to ensure that we (and our readership) are up-to-date on the latest tax law developments. This includes reviewing Orders issued by the Tax Court (not just Designated Orders). Although Orders are not precedential, they do provide insight into a Judge’s perspective in certain areas.

Andrew R. Roberson is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office. Andy specializes in tax controversy and litigation matters, and has been involved in over 30 matters at all levels of the Federal court system, including the United States Tax Court, several US Courts of Appeal and the Supreme Court.

Andy also represents clients, including participants in the CAP program, before the Internal Revenue Service Examination Division and Appeals Office, and has been successful in settling...

Kevin Spencer is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Washington, D.C., office. He focuses his practice on tax controversy and litigation issues.

Kevin represents clients in complicated tax disputes in court and before the Internal Revenue Service (IRS) at the IRS Appeals and Examination divisions.

In addition to his tax controversy practice, Kevin has broad experience advising clients on various tax issues, including tax accounting, employment and reasonable compensation, civil and criminal tax penalties, IRS procedures, reportable transactions and tax shelters, renewable energy, state and local tax, and private client matters. After earning his Master of Tax degree, Kevin had the privilege to clerk for the Honorable Robert P. Ruwe on the US Tax Court.

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